Harbor challenge by green groups wins last-minute safeguard

COLUMBIA — South Carolina lawmakers have attached protections to a bill in order to preserve a lawsuit against the U.S. Army Corps of Engineers’ Savannah harbor deepening.

The federal suit brought by environmental groups against the corps rests on the private citizens’ ability to sue, a right that was clarified by the S.C. Supreme Court last summer. A bill, H. 4654, seeks to get rid of that right within the Pollution Control Act. But lawmakers amended the proposal so that pending actions, specifically the one against Georgia’s $653 million Savannah Harbor Expansion Project, would not be affected.

In mid-April the corps filed a motion to dismiss the suit, pointing to H. 4654 and detailing its latest steps through the legislative process. The motion noted that South Carolina lawmakers were in the process of doing away with environmental groups’ standing to sue them.

A corps spokesman had no comment Thursday when asked to respond to the impact the latest lawsuit protections in H. 4654 would have on the challenge pending in district court. The project is intended to deepen about 38 miles of the Savannah River from 42 feet to 47 feet in order to accommodate larger vessels after the Panama Canal is expanded in 2014.

South Carolina lawmakers and environmental groups argue the dredging will bring environmental degradation to the estuary as well as expose the area to cadmium-laced dredge spoil material.

Last month the Southern Environmental Law Center raised the threat of H. 4654 in a letter to Senate Transportation Committee chairman Larry Grooms, R-Berkeley.

The center said the General Assembly should “not gut the citizen suit provision of the (Pollution Control Act)” because it “would not only do away with the current litigation pending in federal district court in South Carolina, but it would also remove a critical barrier to construction of the SHEP.”

Before the Senate adjourned Thursday Sen. Brad Hutto, D-Orangeburg, said the compromise would speed up the process of resolving environmental disputes by sending conflicts to the Administrative Law Court instead of the circuit court. The compromise preserves the Savannah harbor challenge along with a handful of other pending lawsuits, including one opposing cruise ships in the Port of Charleston.

“You’ll be able to challenge those same items, but you’ll have to do in the Administrative Law Court not in a lawsuit,” said Hutto of the amended bill. “Whoever thinks they should have a permit or should not have a permit, you’re still going to get a hearing on it. It’s just going to be in the Administrative Law Court rather than in the circuit court.”

Sen. Jake Knotts, R-Lexington, put his name on the legislation before it could receive a third reading last week. But bill watchers expect the block to be short lived, and that the proposal will be sent to the House and approved. Even though next week is the last week of the regular session, Frank Holleman senior attorney for the Southern Environmental Law Center, said he does not expect the legislation to run out of time.

“I think the conservation groups felt it was the best we could get, but it does undercut the ability of the public to hold polluters accountable when (the S.C. Department of Health and Environmental Control) does not,” he said.

The S.C. Chamber of Commerce has called the bill one of its chief priorities and warns that without the “fix,” South Carolina will be left at a competitive disadvantage to neighboring states. Under the current law, as detailed by a state Supreme Court ruling in July, allowing private citizens to file suit to halt pollution is “opening the door for a tidal wave of lawsuits,” according to the state Chamber.

Holleman said that’s not the case. Frivolous lawsuits get thrown out, he said, adding that it’s the meritorious lawsuits that business groups actually fear.

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